IN THE CASE OF:	 

		BOARD DATE:	5 January 2012

		DOCKET NUMBER:  AR20110011725


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge through his Member of Congress from undesirable to honorable.

2.  The applicant states:

* his discharge resulted from a mutual decision
* he was told his discharge would be under honorable conditions and would be considered an early resignation from service
* he suffered from schizoaffective disorder and bi-polar disorder
* he was not physically or mentally able to follow military life
* he still suffers from these disorders

3.  The applicant provides:

* a self-authored statement in support of his claim
* a letter from his physician, dated 18 February 2008
* multiple pages of medical progress notes from a Department of Veterans Affairs (VA) outpatient clinic

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 16 November 1971.  He completed training and was awarded military occupational specialties 11B (Light Weapons Infantryman) and 11C (Indirect Fire Infantryman).

3.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 1 February 1973, for:

* willfully disobeying a lawful order from a superior noncommissioned officer on 23 January 1973
* absenting himself from his unit on 24 January 1973

4.  His record shows he was reported as absent without leave (AWOL) by his unit on two occasions:

* from on or about 6 August 1973 to on or about 26 September 1973
* from on or about 1 November 1973 to on or about 21 January 1974

5.  On 22 January 1974, court-martial charges were preferred against the applicant for two specifications of a single charge of violating Article 86 of the UCMJ for being AWOL from his unit on two separate occasions.

6.  On 22 January 1974, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him.

7.  On 24 January 1974 subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

8.  In his request for discharge, he indicated he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 21 February 1974, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 1 March 1974, he was discharged accordingly.  His DD Form 214 confirms he:

* completed 1 year, 11 months, and 9 days of total active service
* was credited with 127 days of lost time
* received an under other than honorable conditions characterization of service

10.  His record contains no indication he suffered an injury or illness, either physical or psychological, which would have warranted his referral to the Physical Disability Evaluation System.

11.  On 2 March 1982, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  He provides:

	a.  a letter from his physician, dated 18 February 2008, in which he states the applicant suffers from paranoid schizophrenia, manifested by hallucinations.  He states the applicant is unable to work in any social situation.  He further states the applicant suffers from a history of pulmonary embolism, deep vein thrombosis, and hypertension;

	b.  multiple pages of medical progress notes from a VA outpatient clinic, dated February 2011, that detail the applicant's medical and mental issues and treatment; and

	c.  a self-authored statement in support of his claim, dated 14 July 2011, in which he contends that he was raped by fellow service members sometime in the year 1973, a fact that was ignored by his chain of command.  He further contends that his fear of retribution for going to his chain of command, coupled with his chain of command's refusal to act, resulted in his AWOL.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his undesirable discharge to an honorable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant contends his discharge resulted from mutual consent.  He is correct, insofar as the evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, he voluntarily requested discharge in lieu of trial by court-martial, and his request was accepted.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  There is no evidence in the available record to support his contention that he was raped by fellow service members.  Nonetheless, such an act would not have justified his two separate extended periods of AWOL.

5.  Further, the evidence of record does not support his contention that his mental condition was a contributing factor and underlying cause of the conduct that resulted in his discharge.

6.  Based on his record of indiscipline, including NJP and multiple periods of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory; therefore, he is entitled to neither an honorable nor a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  _X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20100008950



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ABCMR Record of Proceedings (cont)                                         AR20110011725



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